Medha Patkar v. State of Maharashtra and 5 Ors

Order dated 3.10.2017) 1021

30.01.2023

(b)(ii) OC for Wings A and B received on

9.3.2022; OC for Wings C, D and E received on 22.4.2022 Sorrento December 2020

15.06.2023

(b)(iii) OC received on

13.6.2022 TOTAL 1512 1128

¶11Thus, as against direction of this court in interim orders dated 22 February 2012 and 3 October 2017 for construction of 887 flats of 80 sq.mtrs, the developer/applicants have constructed 1150 flats of 80 sq. mtrs. However there appears to be delay in construction of some of the flats. It is evident from the above chart showing updated status of construction. So far as 'A' and 'B' wings of 'Atlantis' building is concerned, 294 flats of 80 sq.mtrs which were required to be constructed by December 2017 are constructed by 28 March 2018. In 'C' wing of 'Atlantis' building 154 flats of 80 sq. mtrs which were supposed to be complete by June 2018 are constructed by 13 February 2019. These flats are covered in prayer clause (a) of the Interim Application no. 10155 of 2022 which was deferred by this court by its order dated 9 April 2021. So far as 88 flats of 40 sq. mtrs in building 'Sorrento' are concerned, the same were required to be completed by December 2020. However, the same appears to have been constructed by 13 June 2022. These flats are covered by prayer clause (b)(iii) of the Interim Application for which developers/applicants were granted liberty to file better affidavit by order dated 9 April 2021.

¶12We have heard Dr. Sathe, the learned Senior Advocate assisted by Mr. Chetan Kapadia for the developers/applicants. Mr. Sathe would take us through the affidavits explaining the reasons for delay in construction of some of the flats. He would submit that the delay caused in construction of some of the flats in the building 'Sorrento' was essentially on account of the requirement of obtaining environmental clearances, which was beyond the control of the developers. That the entire obligation of construction of requisite number of flats and handing over of requisite area to the State Government being met by the Developers, they should now be permitted to proceed further with the development of PADS by lifting all fetters imposed by this court in its various interim orders. He would further submit that the bonafides of the developers are clear from the fact that they have developed additional flats of 80 sq. mtrs than the one required under the interim orders of this Court. Dr. Sathe would further contend that as directed by this court in paragraph 53(g) of the interim order dated 22 February 2012 developers have scrupulously followed the conditions of not selling two flats to the same person or any member of her/his family, being her/his spouse and children.

¶13Mr Joshi, the learned counsel appearing for the Petitioner in PIL/21/2010 would oppose the prayers in the Interim Application filed by the developers contending that the justification of delay in obtaining environment clearance for construction of the building 'Sorrento' is required to be rejected as the developers always had the knowledge about mandatory requirement of law for obtaining environmental clearance. He would submit that on account of inordinate delay in construction of 88 flats of 40 sq.mtrs in building 'Sorrento', the direction in paragraph 22 of the interim order dated 22 August 2017 for construction of additional 10% flats would automatically kick in. He would therefore urge before us to direct further construction of 10% additional flats of 80 sq. mrts. by the developers.

¶14We have also heard Mr. Kakade, the learned Government Pleader who draws our attention to the affidavit dated 19 September 2022 in which the State Government has also clarified that the developers/applicants have complied with all the obligations. We would refer to the relevant paragraphs of the affidavit dated 19 September 2022 in which it is averred in paragraph 6 to 8 as under:

¶6On 7th May, 2022, the Respondent No. 2, MMRDA has taken possession of 128 flats of 40 sq. mtrs and 128 flats of 80 sq.mtrs having area aggregating 17,173.70 sq.mtrs against 17,146.05 sq.mts in the Hill Grange Building. Hereto annexed and marked Exhibit "A" and "A-1" is copy of the said Possession Receipt dated 7th May, 2022 along with the English translation.

¶7Thus, the Applicant has complied with the obligation of handing over 17,146.05 sq.mtrs to State Government as specified in paragraph 53(h) of the said Judgment dated 22nd February, 2012 read with the paragraph (3) of the Order dated 3rd October, 2017.

¶8Thus, the Applicants have complied with the paragraph no. 53 (f) of the said Judgment dated 22nd February, 2012 read with paragraph no. 16 of the Order dated 3rd October, 2017 in respect of construction of 40 sq.mtrs and 80 sq.mtrs flats.

¶15We have also heard Mr. Shinde, the learned counsel for MMRDA who also does not dispute fulfillment of obligations under the interim orders of this Court by the developers/applicants.

¶16Having heard the learned counsels for rival parties and after perusal of previous orders passed by this court and various affidavits filed by the parties, the undisputed position that emerges is that the developers/applicants have fulfilled the entire obligations cast upon them by this Court by its interim orders. However they have defaulted in respect of timeline with regard to construction of some of the flats as detailed above. This court has already granted prayer clauses b(i) and b(ii) of the Interim Application No. 10155 of 2022 and has thereby extended the timeline in respect of some the flats in buildings 'Castle Rock' and 'Regent Hill' to 30 January 2022 (instead of December, 2020) and 30 January 2023 (instead of 31 May 2021) respectively. What remains now is to extend the timeline/ condone the delay in construction of some of the flats in buildings 'Atlantis' and 'Sorrento'.

¶17In the affidavit dated 7 June 2021, the developers/applicants have provided justification for delay in construction of flats in building 'Sorrento' covered by prayer clause (b)(iii). We have gone through the affidavit dated 7 June 2021. It appears that the developers/applicants had obtained Environment Clearance on 10 April 2014 in respect of other buildings such as Atlantis, Mapple and Hill Grange and since 'Sorrento' was newly proposed after the year 2014, the earlier Environment Clearance of 2014 did not apparently cover it. Therefore a common application for environment clearance was made to the Central Government on 3 August 2017 for proposed expansion of residential buildings (including Sorrento) and on account of non-convening of meeting of Expert Appraisal Committee, the application remained pending. Due to change in the policy of grant of EC by the State Environment Assessment Committee, developers/applicants were required to re-apply for EC on 17 May 2018 at the State Government level.

¶18The State Expert Appraisal Committee (SEAC II) in its 77th meeting held on 16 November 2018 considered developers'/applicants' application but decided to defer the same seeking certain clarifications. The clarifications were provided by the developers on 6 December 2018. Thereafter in various meetings of SEAC II the proposal was deferred for various reasons, details of which are stated in the affidavit. Ultimately SEAC recommended the proposal to State Environment Impact Assessment Authority (SEIAA) for approval on 24 February 2019. SEIAA granted environment clearance to the developers/applicants on 29 May 2019 subject to conditions. This is how final environment clearance came to be granted in respect of various buildings including Sorrento on 14 June 2019. The affidavit dated 7 June 2021 also states the reason of delay in issuance of NOC for tree cutting resulted in delay in issuance of Commencement Certificate from 31 August 2018 to 6 March 2019. Another reason cited is sub division of plot-layout as per condition 10 of the IOD which consumed time between 20 November 2018 to 5 July 2019. Last impediment cited is about the ambiguity regarding applicability of Development Control & Promotion Regulations, 2034 and its effect requiring amendment of layout and plans.

¶19For the above quoted reasons delay, in completion of 88 flats of 40 sq.mtrs in building Sorrento is sought to be justified. It must however be noted here that in prayer clause (b)(iii), the developers/applicants sought extension of time upto 15 June 2023 for completion of those flats, whereas they were able to complete construction of the building 'Sorrento' on 13 June 2022 itself, i.e. before the extension sought.

¶20Having gone through the reasons set forth in the affidavit dated 7 June 2021 with regard to delay in construction of 88 flats of 40 sq.mtrs in building 'Sorrento', we record our satisfaction about the justification given therein. Therefore we are of the view that prayer clause b(iii) sought for in the Interim Application No. 10155 of 2022 deserves to be granted.

¶21In additional affidavits filed on 19 January 2022, 22 March 2022 and 22 June 2022, the developers/applicants have put on record as to how the construction progressed and how ultimately the entire obligations of construction of both categories of flats were finally completed by them.

¶22So far as prayer clause(a) of the Interim Application No. 10155 of 2022 is concerned, the delay in construction of 294 flats of 80 sq.mtrs in 'A' and 'B' wing of building 'Atlantis' is only of three months. They were to be constructed by December 2017, but have been constructed by 28 March 2018. So far as 154 flats of 80 sq.mtrs in 'C' wing of building 'Atlantis' is concerned, again the delay is about seven and a half months. They were to be constructed by June 2018 and are actually constructed by 13 February 2019. Since the delay in construction of flats covered by prayer clause (a) of the Interim Application is not significant, we propose to condone the same. It must be observed here that under the interim orders of this court, the developers/applicants were under obligation to construct only 887 flats of 80 sq.mtrs whereas they have constructed 1150 flats of 80 sq.mtrs i.e more than the obligation casted by this court. This is yet another factor to be borne in mind while considering the prayer of the developers/applicants for condonation of delay in respect of flats covered by prayer clause (a) of the Interim Application.

¶23As observed above, this court has already granted prayer clause (b)(i) and b(ii) of the Interim Application. As observed above we are inclined to grant prayer clauses (a) and (b)(iii) of the Interim Application No. 10155 of 2022.

¶24Interim Application No. 10110 of 2022 has been filed seeking direction to transfer the amount of Rs. 112.35 cores (approx.) presently lying in the joint account held in the names of Applicants (Classique Associates and HGP Community Pvt. Ltd.) and the Prothonotary and Senior Master of this court into the bank account maintainable by the applicants in accordance with the provision of the Real Estate (Regulation and Development) Act, 2016 in respect of building 'Regent Hill' to be utilised for the purpose of construction of the building. Prayer is also made to deposit the considerations received by the developers/applicants from sale of the balance flats into their bank accounts. Now that interim orders of this court are already satisfied by the developer/applicants, the sale proceeds deposited as per interim order dated 3 October 2017 lying in the above joint accounts can be permitted to be withdrawn by the applicants (Classique Associates and HGP Community Pvt. Ltd.). Thus the Interim Application No. 10110 of 2022 can also be disposed of permitting withdrawal of such amounts.

¶25While hearing the Interim Application nos. 10155 of 2022 and 10110 of 2022, it is noticed that the main Public Interest Litgations have not yet been disposed of. By the initial extensive interim order though this court issued various directions in the main PILs, the same were adjourned to 19 March 2012 seeking compliance. Thereafter various interim orders appear to have been passed in the PILs. However all the three PIL Nos. 131 of 2008, 91 of 2008 and 21 of 2010 continue to remain pending. The aspect of violation of Tripartite Agreement on the part of the developers, which is the main issue in all there PILs, has already been dealt with in the interim order dated 22 February 2012 and corrective measures were directed to be undertaken. Thus the main issue involved in the PILs has already been decided by the interim order dated 22 February 2012. With complete compliance of all obligations put on the developers/applicants for construction of flats and handing over tenements to the State Government, we observe that no purpose would be served in keeping the PILs pending any further. Therefore while disposing of the Interim Application No. 10155 of 2022 and 10110 of 2022, we propose to dispose of the main PILs as well. Accordingly, we proceed to pass the following order : ORDER

(i) Interim Application No. 10155 of 2022 is allowed in terms of prayer clause (a) and (b)(iii) as well.

(ii) Delay in construction of some of the flats as per the directives of this court in the interim order dated 22 February 2012 and 3 October 2017 shall stand condoned.

(iii) It is recorded that the developers/applicants have completed construction of 1511 flats of 40 sq.mtrs and 887 flats of 80 sq.mtrs as envisaged in the interim orders dated 22 February 2012 and 3 October 2017.

(iv) It is further recorded that the flats having aggregate area of 17146.05 sq.mtrs have been handed over by the developers/ applicants to MMRDA which has issued possession receipt dated 7 May 2022.

(v) In view of compliance of all the obligations imposed on the developers/applicants by interim order dated 22 February 2012 and 3 October 2017, all restraints imposed in paragraph 53 of the order dated 22 February 2012 are vacated and the developer/applicants shall be at liberty to proceed with development of PADs land without any embargo/restrictions including regarding size of tenements or joint use of the tenements, amalgamation or construction of tenements for commercial use.

(vi) The amounts of sale proceeds deposited as per order dated 3 October 2017 lying in the joint accounts held jointly by applicants (Classique Associates and HGP Community Pvt. Ltd.) and Prothonotary and Senior Master of this court along with interest accrued thereof are permitted to be withdrawn by the joint applicants and the Prothonotary and Senior Master is directed to take steps to close the joint accounts. As a result, Interim Application No. 10110 of 2022 seeking withdrawal of the amounts stands disposed of.

(vii) The one-man committee headed by Justice S. Radhakrishnan (Retired) appointed by this court by order dated 3 October 2017 shall stand discharged.

(viii) It is made clear that all other directions given in the interim order dated 22 February 2012 and 3 October 2017, except as modified by the present judgment, shall continue to operate.

(ix) Public Interest Litigation Nos. 131 of 2008, 91 of 2008 and 21 of 2010 stands disposed of.

(x) In view of the disposal of the Public Interest Litigations all Interim Applications, Civil Applications and Notices of Motion stand disposed of.

(xi) There shall be no orders as to costs. (SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO. 10155 OF 2022 AND INTERIM APPLICATION NO. 10110 OF 2022 IN PUBLIC INTEREST LITIGATION NO. 131 OF 2008 WITH PUBLIC INTEREST LITIGATION NO. 131 OF 2008 1. Classique Associates … Applicants 2. HGP Community Pvt. Ltd. Both having Registered Office at 514, Dalamal Tower, Nariman Point, Mumbai 400 021 In the matter between 1. Kamlakar Motiram Satve Age about 49, occupation: service and social worker, residing at Sita Sadan, Opp. I.I.T Main Gate, Tirandaz /village, Powai, Mumbai-400 076 … Petitioners 2. Sou Usha Kamlakar Satve Age about 44, occupation: household work and social work, residing at Sita Sadan, Opp. I.I.T Main Gate, Tirandaz /village, Powai, Mumbai-400 076 rrpillai RAJESHWARI RAMESH PILLAI Digitally signed by RAJESHWARI RAMESH PILLAI Date: 2023.01.12 +0530 Vs. 1. The State of Maharashtra 2. Department of Revenue & Urban Development, Government of Maharashtra, Mantralaya, Mumbai-400 032 3. Mumbai Metropolitan Regional Development Authority Having office at Bandra Kurla Complex, Bandra (East), Mumbai-400 051 4. Brihanmumbai Municipal Corporation through its Commissioner having his office at Mahapalika Bhavan, Opposite C.S.T., Fort, Mumbai-400 001 5. Chittaranjan Chandrabhan Sharma age about 80, occupation: Builder having his office at C-104, Prashant Apartment, Opp IIT Main Gate, Powai, Mumbai 400 076 6. Narottam Chittaranjan Sharma age about 80, occupation: Builder having his office at C-104, Prashant Apartment, Opp IIT Main Gate, Powai, Mumbai 400 076 7. Bhavanishankar (Lallu) Harishchandra Sharma Age about 60, Occupation : Builder, residing at Sharma Cottage, Behind Lake Cassel, Hiranandani Complex, IIT Powai, Mumbai-400 076 having his office at Bhavani Industrial Services Estate, Powai, Mumbai-400 076 Prashant Gopal Sharma Builder & Developer, 3rd Floor, G.H.P. Corporation, MilleniumTower, Near Petrol Pump, Powai, Mumbai-400 076 M/s. Hiranandani Developers Pvt. Ltd. Having its office at 'Olympia' Hiranandani Complex, Powai, Mumbai-400 076 Niranjan Hiranandani Age about 55, Occupation: Builder Managing Director of M/s. Hiranandani Developers Pvt. Ltd- the Respondent no. 9 having his office at at 'Olympia' Hiranandani Complex, Powai, Mumbai-400 076 … Respondents WITH ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 91 OF 2008 WITH NOTICE OF MOTION NO. 437 OF 2011 AND NOTICE OF MOTION NO. 441 OF 2011 IN PUBLIC INTEREST LITIGATION NO. 91 OF 2008 Mr. Rajendra Thacker Res. At Flat No. D1, Dwarkesh Park Co- operative Housing Society, Sai Baba Nagar, Borivali (West) Mumbai-400 092 … Petitioner Vs. 1. The State of Maharashtra Principal Secretary , Dept. of Urban Development Dept, Secretary Revenue and Forest Department, Mantralaya Mumbai-400 032 2. Mumbai Metropolitan Regional Development Authority Having office at Bandra Kurla Complex, Bandra (East), Mumbai-400 051 3. Slum Redevelopment Authority Regd Add : 5th floor, MHADA Bldg Kalanagar, Bandra (E), Mumbai-400 051 4. Municipal Corporation of Greater Mumbai, Regd Add : Mahapalika Bhavan CST,Mumbai-400 001 5. Maharashtra Chamber of Housing Industry, Regd. Add : Maker Bhavan II 4th floor, 18/V Thackersey Marry, New Marine Lines, Opp. Income Tax Office, Mumbai 6. M/s. Hiranandani Construction Regd. Add: 'Olympia' Central Avenue, Hiranandani Gardens, Powai, Mumbai-400 076 6A Niranjan Hiranandani 6B Hiranandani Group of Companies 6C Lake View Developers All having address at : 'Olympia' Central Avenue, Hiranandani Gardens, Powai. … Respondents WITH ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION NO. 21 OF 2010 WITH NOTICE OF MOTION NO. 442 OF 2021 IN PUBLIC INTEREST LITIGATION NO. 21 OF 2010 Medha Patkar National Alliance for Peoples Movement 29-30 Haji Habib Building, Naigaon Cross Road, Dadar (East), Mumbai-400 014 … Petitioner Vs. 1. The State of Maharashtra Through the Secretary, Urban Development Department, Mantralaya, Mumbai 2. The Secretary Hous